COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70987 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANDRE HOWARD : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 3, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-334853 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 4403 St. Clair Avenue BY: JOHN A. CLOUGH, ESQ. Cleveland, Ohio 44103 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Andre Howard appeals from his conviction for one count of gross sexual imposition. For the reasons set forth below, we affirm. On February 22, 1996, defendant was indicted for one count of gross sexual imposition upon a child under thirteen years of age, with two specifications alleging that defendant had previously been convicted of offenses of violence. Defendant pleaded not guilty and the matter proceeded to a jury trial on May 6, 1996. The state presented the testimony of "Gwendolyn," the victim of the offense as alleged in the indictment, her friend, and the mothers of both girls. Gwendolyn testified that her date of birth is September 30, 1982. On the night of June 17, 1995, when she was twelve years old, she slept at the home of her friend Diana. Also at the home were Brenda Howard, Diana's mother who is the sister of defendant, defendant, and Kathy Kuehn. While the girls were in Diana's room, defendant asked them if they wanted anything from Burger King. The girls subsequently fell asleep before defendant arrived with their food. Gwendolyn fell asleep face down on the floor next to Diana's bed. When she awoke, defendant was laying on top of her with his hand underneath her clothes and was rubbing her breasts and back. Gwendolyn shook Diana to wake her and said that her uncle was bothering her. Diana then went downstairs and Gwendolyn called her - 3 - mother and asked to be picked up. She did not explain why she wanted to be picked up, however, and she did not actually go home until the following morning. At this time, she noticed the food defendant had purchased in the hallway outside of Diana's bedroom. Gwendolyn further stated that the following morning, Diana called the home of Gwendolyn's aunt. During this call, Diana's mother asked to speak with Gwendolyn's mother. Gwendolyn indicated that she was not there. Diana's mother then reportedly stated that Gwendolyn did not have to worry about coming to their home because "she had handled everything." (Tr. 109). Several months later, Gwendolyn and her mother had a brief discussion with Dolores Mercado, Diana's paternal grandmother. Thereafter, Gwendolyn told her mother that defendant rubbed her while she was sleeping. Judith White, Gwendolyn's mother testified that she permitted her daughter to sleep at Diana's home on June 17, 1995. At approximately 2:45 a.m., Gwendolyn called her and asked to be taken home. Mrs. White asked her what was the matter and Gwendolyn stated that nothing was wrong. Mrs. White arrived at the house a short time later and knocked on the front door, the front window, then the back door, but no one answered so she assumed that the girls had gone back to sleep. She then picked her daughter up the next morning. Approximately six months later, Mrs. White spoke to Mrs. Mercado, then asked Gwendolyn what had occurred at Diana's house. Thereafter, Gwendolyn made a statement to the police. - 4 - Finally, Judith White testified that her daughter had spent less time with Diana following the June sleepover, and had called her far less frequently. Diana likewise testified that on the night of the sleepover, defendant offered to buy the girls food from Burger King, and the girls fell asleep before he returned. She next recalled that Gwendolyn jumped on her bed and stated that defendant touched her on her legs. Diana saw the defendant in the room at this time, and he said, "Don't tell." Later that night, Diana told Gwendolyn that she should tell her mother, and also called her own mother at work. Six months later, Diana told her paternal grandmother, Mrs. Mercado. Mrs. Mercado testified that she is not related to defendant. She further stated that Diana reported the incident to her and she in turn told Gwendolyn's mother who then asked Gwendolyn about it in her presence. Gwendolyn then stated that she did not tell her mother earlier because she was afraid, and Mrs. Mercado stated that she should not be afraid because she had done nothing wrong. Defendant elected to offer evidence and presented the testimony of Diana, Kathleen Kuehn, Katey Howard, Earnest Howard, and Brenda Howard. Kathleen Kuehn testified that she was defendant's girlfriend in 1995, and was living in Diana's mother's home in the summer of that year. According to Kuehn, defendant never spent the night at this home, and she did not recall Gwendolyn sleeping there. Kuehn - 5 - did not learn of the offense at issue until it was discussed many months later. Katey and Earnest Howard testified that defendant was living with Earnest, his brother, at the time of the offense at issue. Brenda Howard, Diana's mother, testified that she did not learn of this incident until the time of defendant's arrest, and after this time, Diana's father arranged for Diana to stay with Mrs. Mercado. She denied that defendant was living with her in June 1995, and denied telling Gwendolyn that she had taken care of the problem on the morning after the sleepover. Diana reiterated that when Gwendolyn awoke her during the sleepover, she stated that defendant touched her on the leg. At the close of the evidence, defendant asked for new counsel and asserted that he had been deprived of effective assistance of counsel. The court denied this motion (Tr. 201-202) and the matter was subsequently submitted to the jury. The jury found defendant guilty of the offense of gross sexual imposition upon a child under the age of thirteen, and the trial court found defendant guilty of the violence specifications. Thereafter, the court sentenced defendant to a term of five to ten years incarceration. Defendant now appeals and assigns three errors for our review. Defendant's first assignment of error states: THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE INADMISSIBLE HEARSAY. Within this assignment of error, defendant complains that the - 6 - trial court erred in allowing Gwendolyn to testify as to her discussion with Diana's mother, in allowing Mrs. White to testify regarding her conversation with Gwendolyn on June 18, 1995, and in allowing Mrs. Mercado to testify as to her conversation with Mrs. White and Gwendolyn in December 1995. Evid. R. 801(C) defines "Hearsay" as a statement offered in evidence to prove the truth of the matter asserted. Evid. R. 802 sets forth a general prohibition against the introduction of hearsay, and the remainder of Article VIII of the Ohio Rules of Evidence contains various exceptions to the general prohibition against the introduction of hearsay. In this instance, we are not convinced that Mrs. White's and Mrs. Mercado's statements fall within the definition of "hearsay" evidence because the statements were not offered to prove the truth of the matter asserted. Indeed, Mrs. White's statement indicated that Gwendolyn reported that nothing was wrong when she asked to be picked up from Diana's house. That statement was simply offered to corroborate Gwendolyn's testimony that she had called her mother from Diana's house in the middle of the night. Likewise, Mrs. Mercado's testimony was offered to demonstrate Gwendolyn's reluctance to tell about the incident and to explain the delay in going to the police. As to Gwendolyn's testimony regarding the telephone conversation with Diana's mother, we agree that hearsay evidence was introduced but we cannot conclude that the admission of this - 7 - evidence constituted prejudicial error in light of the compelling evidence presented, including Diana's testimony that defendant was indeed in the girls' bedroom in the middle of the night. Defendant's first assignment of error is overruled. Defendant's second assignment of error states: THE APPELLANT WAS DEPRIVED EFFECTIVE ASSISTANCE AT TRIAL. In determining whether defendant had effective assistance of counsel we must adhere to the test enunciated in Strickland v. Washington (1984), 466 U.S. 668, 687: A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Thus, a defendant bears the burden of proving that his trial counsel was ineffective, and that a reasonable probability exists that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136, 143. We also note that a properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. - 8 - Hamblin (1988), 37 Ohio St.3d 153, 155-156. In this instance, defendant claims that his counsel was ineffective for failing to object to hearsay testimony, calling witness who "added nothing to the defense," made a misstatement, and was unable to hear. As to the first of these challenges, we note that failure to object to error, alone, is not enough to sustain a claim of ineffective assistance. State v. Campbell (1994), 69 Ohio St.3d 38, 52-53 ("Because `[o]bjections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact- finder,' Jacobs, Ohio Evidence (1989), at iii-iv, competent counsel may reasonably hesitate to object in the jury's presence.") Further, the challenged testimony was corroborated by admissible non-hearsay testimony from the state's witnesses, and was merely cumulative in effect. Accordingly we cannot say that but for these alleged errors, the outcome of the trial would have been different. Accord In re Hodge (August 7, 1995), Butler App. No. CA94-08-170, unreported. As to the sufficiency of the defense, our evaluation of the record reveals that defense counsel elicited from the witnesses that defendant did not reside at Diana's home and did not visit there for any extended periods of time, and therefore presented evidence to negate opportunity to have committed this crime. In addition, defense counsel elicited from Kuehn that she was defendant's girlfriend, and therefore presented evidence to negate - 9 - a motive to obtain sexual contact. Defense counsel also demonstrated that the fast food the girls requested was left for them outside of their door. In light of this, and cognizant of the fact that it is the state and not the defense which carries the burden of proof, we cannot find counsel's performance to be deficient herein. The misstatement, wherein defense counsel stated that defendant was Brenda Howard's "sister," can only be characterized as a trivial, everyday occurrence, and not an indication of deficient performance. In any event, there has been no demonstration that this misstatement prejudiced the defense. Regarding counsel's alleged difficulty hearing, what remains clear in the record is that defense counsel endeavored to be certain of all of the testimony adduced. Further, Gwendolyn apparently kept her head down while testifying, making it difficult to hear her. (Tr. 116) Moreover, the prosecuting attorney stated that "the acoustics in here are terrible," (Tr. 44) and the trial judge also acknowledged that its was difficult to hear in the courtroom. (Tr. 137) Thus, we are unable to conclude that defense counsel has rendered deficient performance herein. The second assignment of error is overruled. Defendant's third assignment of error states: THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER PREJUDICIALLY IRRELEVANT EVIDENCE. In this assignment of error, defendant argues that the trial - 10 - court's admission of Mrs. White's testimony that the girls did not remain close friends following the sleepover was prejudicially irrelevant. Evid. R. 401 defines relevant evidence as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 402 provides that 'evidence which is not relevant is not admissible.' 'The admission of relevant evidence pursuant to Evid.R. 401 rests within the sound discretion of the trial court.' Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 citing State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus. The trial court's decision will not be disturbed absent a materially prejudicial abuse of discretion. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291. If relevant, the evidence still must be evaluated under Evid.R. 403 to determine whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion or the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. We find that the trial court properly permitted introduction of evidence that the girls were no longer close friends following the sleepover as this evidence was extremely probative of the issue of credibility and as to the course of Gwendolyn's actions after that time. Accord State v. Sullivan (October 7, 1993), Cuyahoga - 11 - App. No. 63818, unreported (involving evidence that the victim no longer babysat for defendant's family, and upholding evidence that the victim experienced nightmares after the incident). The third assignment of error is overruled. Affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., AND ROCCO, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .